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Court of Criminal Appeal 30 July 2002

Regina v Roger William MITTON

[2002] NSWCCA 124

Also reported as (2002) 132 A Crim R 123
Sexual offences

Citation: Regina v Roger William Mitton [2002] NSWCCA 124
Court: New South Wales Court of Criminal Appeal
Date: 30 July 2002
Judge(s): Beazley JA, Bell J, Smart AJ

Background

The appellant was tried in the District Court before Goldring DCJ on three counts arising from events on or about 30 August 1998. Two counts alleged sexual intercourse without consent under s 61I of the Crimes Act 1900, and one count alleged an attempted offence. The complainant was a sixteen-year-old who had travelled from Cowra to stay at the appellant's home in Fairfield for a weekend, along with a mutual friend.

The complainant gave evidence that the appellant, who had returned home from a wedding smelling of alcohol, entered her room, ignored repeated requests to stop, restrained her, and committed two acts of sexual intercourse without her consent. Medical evidence supported her account, with a doctor observing bruising to the wrist and genital area consistent with the use of excessive force. The appellant's account was that all sexual contact was consensual and that the complainant had been a willing participant throughout.

The jury convicted the appellant on the two counts of sexual intercourse without consent and acquitted him on the attempted offence. He was sentenced to concurrent five-year terms of imprisonment with a three-year non-parole period. He appealed against conviction on a single ground and initially sought leave to appeal against sentence, though counsel later abandoned the sentence application entirely.

  • Whether the trial judge misdirected the jury about the mental element required for the offence of sexual intercourse without consent, specifically in relation to the accused's knowledge that the complainant was not consenting.
  • Whether any such misdirection constituted a substantial miscarriage of justice warranting the setting aside of the conviction.

Decision

The sole ground of appeal was that the trial judge misdirected the jury on the mental element of the offence under s 61I of the Crimes Act 1900. The offence requires not only proof that sexual intercourse occurred without consent, but also proof that the accused knew the complainant was not consenting (or was reckless as to that fact). The appellant argued that the directions given to the jury on this element were inadequate or erroneous.

Bell J (with whom Beazley JA and Smart AJ agreed) accepted that an error in the direction had occurred. However, the court considered whether that error resulted in a substantial miscarriage of justice, applying the framework from Wilde v the Queen (1988) 164 CLR 365 and Glennon v The Queen (1993-1994) 179 CLR 1. Under that framework, the court first asked whether the irregularity was so fundamental as to go to the root of the proceedings. If not, the court then asked whether, absent the misdirection, the jury would inevitably have reached the same verdict.

Bell J concluded that the identified error did not go to the root of the trial and did not deprive the appellant of a real chance of acquittal. Having regard to the strength of the complainant's evidence, the corroborating medical findings, and the overall conduct of the trial, the court was satisfied that the jury would inevitably have reached the same verdict even without the misdirection. Leave under r 4 of the Criminal Appeal Rules to rely on the single ground was therefore refused, and the conviction appeal was dismissed.

The sentence appeal required no separate consideration. Counsel for the appellant had expressly abandoned it in written submissions, and the court dismissed the application for leave to appeal against sentence without further analysis.

Orders Made

  • The appeal against conviction is dismissed.
  • The application for leave to appeal against the severity of the sentences imposed is dismissed.

Key Takeaways

  • A misdirection on the mental element of sexual intercourse without consent does not automatically warrant a new trial; the Court of Criminal Appeal applies a two-stage analysis to determine whether a substantial miscarriage of justice has in fact resulted.
  • Under the Wilde and Glennon framework, where the error is not so fundamental as to go to the root of the proceedings, the conviction will stand if the appellate court is satisfied the jury would inevitably have reached the same verdict even without the misdirection.
  • Corroborating medical evidence, such as findings of bruising consistent with excessive force, can bear significantly on whether an appellate court is persuaded that a jury verdict was inevitable despite a legal error in the trial.
  • In dismissing the sentence appeal, the court confirmed that counsel's express written abandonment of that ground was determinative; no further reasoning was required.
  • An acquittal on one count and convictions on related counts within the same trial does not, of itself, undermine the safety of those convictions where the evidence on each count was separately assessed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 344A
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Domican v The Queen (1992) 173 CLR 555
- Driscoll v The Queen (1977) 137 CLR 517
- Festa v The Queen [2001] HCA 72
- Glennon v The Queen (1993-1994) 179 CLR 1
- Mraz v The Queen (1955) 93 CLR 493
- R v Moussa [2001] NSWCCA 427
- Regina v Clarke (1995) 78 A Crim R 226
- Regina v Hemsley (1988) 36 A Crim R 334
- Regina v Kitchener (1993) 29 NSWLR 696
- Regina v O'Meagher (1997) 101 A Crim R 196
- Regina v Tolmie (1995) 37 NSWLR 660
- Regina v Tripodina (1988) 35 A Crim R 183
- Wilde v The Queen (1988) 164 CLR 365